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‘Spoofed Presence Does not Suffice’: On Territoriality in the Tallinn Manual

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Netherlands Yearbook of International Law 2016

Part of the book series: Netherlands Yearbook of International Law ((NYIL,volume 47))

Abstract

This chapter explores how the internet materializes in one of the most influential writings on cyberwar and international law, the Tallinn Manual on the International Law Applicable to Cyber Warfare. Based on the work of Molly Sauter, this chapter examines the metaphor used in the Manual to describe the internet, what effect this particular metaphor has, and at which points specific situations made possible by ‘cyberspace’ escape the confines of this particular metaphor.

Assistant Professor of Public International Law, Faculty of Law, Vrije Universiteit Amsterdam; Research Fellow, Centre for the Politics of Transnational Law; l.j.m.boer@vu.nl.

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Notes

  1. 1.

    B Mason (2015) Beautiful, Intriguing, and Illegal Ways to Map the Internet, Wired, https://www.wired.com/2015/06/mapping-the-internet/, map no. 13, accessed 24 October 2016; on these attempts at ‘mapping’ see also Cohen 2007, at 237–239.

  2. 2.

    B Mason (2015) Beautiful, Intriguing, and Illegal Ways to Map the Internet, Wired, https://www.wired.com/2015/06/mapping-the-internet/, accessed 24 October 2016; for a critique of the view that the ‘non-material’ elements of the internet are legally relevant, see Zeno-Zencovich 2016, at 9, and the discussion outlined below.

  3. 3.

    Sauter 2015, at 73; Post 2007, at 892; Franzese 2009, at 12; Byassee 1995, i.a. at 199. For a reflection on the relation between space and place, see Cohen 2007, at 230–232.

  4. 4.

    Agnew 1994, at 55.

  5. 5.

    Schmitt 2013; for the verb ‘materializing’ with regard to the internet, see Graham 2013, at 181. It should be noted that this chapter was finalized prior to the appearance of the ‘sequel’ to the Tallinn Manual (Schmitt 2017); this new edition may contain changes to the sections discussed in this chapter. This chapter, however, is based on the first Tallinn Manual.

  6. 6.

    Schmitt 2013, at 19 (paraphrased).

  7. 7.

    Sauter 2015, at 73.

  8. 8.

    Ibid., at 73.

  9. 9.

    Johnson and Post 1995, at 1381.

  10. 10.

    As elaborated on below, this is based on ideas developed by Benoliel and Cohen. On ‘mapping’ ‘law space’ onto cyberspace, see Cohen 2007, at 221; Johnson and Post 1995, at 1372 (who use the same phraseology).

  11. 11.

    Lambach 2016, at 11.

  12. 12.

    On the artificiality of this distinction, because of the inevitability of the use of metaphors in space-making, see Cohen 2007, at 229; see also 234–235; but see Franzese 2009, at 9, on the distinction between ‘internet’ and ‘cyberspace’ (maintaining a different view from the one held here). For a similar argument about the ‘embedded[ness] into our daily lives’ of the cyberspace metaphor, see Graham 2013, at 180.

  13. 13.

    See also Tsagourias 2015, at 16–17. For an argument against this stark opposition, see Herrera 2005 and, for different reasons, Cohen 2007 (see, more elaborately, footnote 16).

  14. 14.

    See also Lambach 2016, at 2–3. For an IR perspective on the challenge posed by cyberspace to the state-system, see Steinberg and McDowell 2003.

  15. 15.

    Post 2007, at 889 et seq; see also Cohen 2007, i.a. at 212. For an IR perspective on these positions, see McEvoy Manjikian 2010.

  16. 16.

    Cohen 2007, at 212 and 213–214, 237–239, who similarly refers to these camps as ‘exceptionalists’ and ‘unexceptionalists’, with regard to their notion of cyberspace as distinct (or not) from ‘real space’. See also Hollis 2015, at 136. Hollis similarly refers to Cohen here; the latter points out that both ideas of ‘sameness’ as well as ‘difference’ rest upon ‘[the] metaphoric construct of cyberspace as separate space’ (at 215). In her piece, she reflects on critiques of the metaphor of cyberspace and rejects the question as to the ‘real nature’ of cyberspace – instead, she says, we have to enquire into ‘what kind of space a world that includes cyberspace is and will become’ (at 213). Benoliel similarly argues against the distinction between the unexceptionalists and the exceptionalists; see Benoliel 2005, at 150; Ryngaert 2014, at 18; see also Lambach 2016, at section 3.2. Herrera argues the ‘gap’ between ‘cyberspace’ and the state’s territoriality is not as wide as commonly assumed. See Herrera 2005, e.g. at 2–3. Underlying his argument in part is his claim that the idea of technology having a fixed ‘nature’ is ‘at odds’ with the fact that technology is man-made; he states that ‘technology is political’ (Herrera 2005, at 9); see also Tsagourias 2015, at 14 and Cohen 2007, at 217, pointing out the ‘essentialist’ label applied to this view of the internet. On theories based on ‘the technological malleability of cyberspace’ see ibid., at 221 et seq. and 250 et seq. on STS. For the tripartite division in ‘law space’, ‘real space’ and cyberspace, see Benoliel 2005, at 146 et seq.; for the word ‘law space’ Benoliel refers to Johnson and Post 1995, at 1368.

  17. 17.

    Herrera 2005, at 3 and 4–5.

  18. 18.

    Johnson and Post 1995, i.a. at 1370 et seq.

  19. 19.

    Herrera 2005, at 3; note that he is elaborating on a particular position here, he does not adhere to this view himself. See, for this view, Johnson and Post 1995, at 1370 et seq.

  20. 20.

    Pirker 2013, at 193–194. This is a very brief summary of this position; for examples, see Stein 1998.

  21. 21.

    Johnson and Post 1995, at 1376. For their proposal as to a distinct legal regime, see e.g. at 1401. For an account of this view, see also Herrera 2005, at 3–5.

  22. 22.

    Graham 2013, at 179.

  23. 23.

    Post 2007, at 891–893. In response, see MN Schmitt (2015) PILAC Lecture on Cyber Operations and IHL: Fault Lines and Vectors, 3 April 2015, https://www.youtube.com/watch?v=ZWwrVAMSOT4, accessed 11 May 2016, at 7.00. See, for a critique of exceptionalism, Cohen 2007, at 215–219.

  24. 24.

    Stein 1998, at 1175.

  25. 25.

    Ibid., at 1180.

  26. 26.

    Ibid., at 1181 (emphasis added).

  27. 27.

    For a critique of unexceptionalism, see Cohen 2007, at 219–221.

  28. 28.

    Schmitt 2013, at 13; see also Hollis 2015, at 146.

  29. 29.

    MN Schmitt (2015) PILAC Lecture on Cyber Operations and IHL: Fault Lines and Vectors, 3 April 2015, https://www.youtube.com/watch?v=ZWwrVAMSOT4, accessed 11 May 2016, at 7.00; MN Schmitt (2012) ILD 2012 Panel Discussion: Cyber Conflict and the Law of Armed Conflict, 25–27 June 2012, https://www.youtube.com/watch?v=sglT605YIu4, accessed 13 May 2016, at 5.32.

  30. 30.

    See Schmitt 2013, at 239 et seq; I will briefly return to ‘occupation in cyberspace’, below.

  31. 31.

    Ibid., at 113.

  32. 32.

    See also Werner and Boer 2017. In so doing, the Tallinn Manual places itself squarely in a tradition of international legal handbooks on the application of the laws of war to a new phenomenon—such as armed conflict at sea and air and missile warfare, aimed at ‘examin[ing] how extant legal norms applied to [a specific kind] of warfare.’ See Schmitt 2013, at 1; on this positioning, see Boer 2017, Chapter 5.

  33. 33.

    Schmitt 2013, at 15. On the use of the ‘infrastructure’ metaphor in the Manual, see Sauter 2015, at 70–71, and Sect. 6.3 of this chapter.

  34. 34.

    Schmitt 2013, at 18.

  35. 35.

    Roscini 2014, at 41. ‘Restating’ the law in a new context, however, does have a creative force of its own. On this, see Werner 2017; Boer 2013.

  36. 36.

    Roscini 2014, at 31; see also Werner and Boer 2017.

  37. 37.

    As pointed out by Sauter 2015: see Sect. 6.3 for an elaboration on her work. The phrase ‘physically present’ is used in the Manual; see below.

  38. 38.

    Schmitt 2013, at 16. This statement is echoed in Lambach’s discussion of Mueller, who differentiates between ‘sovereignty in cyberspace’ and ‘sovereignty over cyberspace’. See Lambach 2016, at 6. For Lambach’s alternative, see 7–9.

  39. 39.

    Schmitt 2013, at 16.

  40. 40.

    Ibid., at 17; see also Finnemore and Hollis 2016, 460.

  41. 41.

    Schmitt 2013, at 17.

  42. 42.

    Ibid., at 19 (emphases added).

  43. 43.

    Johnson and Post 1995, at 1378 (emphasis added); similarly, Cohen 2007, at 244. See also the references to and elaboration of Sauter’s work, below—specifically with regard to the verb ‘reside’.

  44. 44.

    A similar phraseology is used by Lambach 2016, at 4; see also the references in footnotes 3 and 4.

  45. 45.

    As stated, this threefold distinction is based on Benoliel 2005, at 146–151.

  46. 46.

    Byassee 1995, at 199; see also Schmitt 2013, at 18.

  47. 47.

    Based on Byassee 1995, at 198; see also Finnemore and Hollis 2016, 459 (with reference to Cohen 2007).

  48. 48.

    Lakoff and Johnson 1980.

  49. 49.

    Sauter 2015; see also Olson 2005, who also refers to the ‘cyberspace as place metaphor’ (at 10). For her discussion of other metaphors, see at 14–17; for further references to works on cyberspace and metaphors, see Lambach 2016, at 9–10. On the impact of metaphors on policy choices, see footnote 52, below, and the conclusion of this chapter.

  50. 50.

    Sauter 2015. For a different critique of the Tallinn Manual’s reasoning, see Hollis 2015, at 143–145.

  51. 51.

    Ibid., at 64–66; for the inevitability of this move, see also Cohen 2007, at 229.

  52. 52.

    Sauter 2015, at 77; see also Cohen 2007, at 211 and Graham 2013, at 177. Lambach similarly talks of ‘attempt[s] at space-making’, see Lambach 2016, at 11 (emphasis removed).

  53. 53.

    Sauter 2015, at 64, 67, 68 and 77. For a discussion and critique of cyberspace as a commons, see Brunnée and Meshel 2015 at 22–25; Tsagourias 2015, at 24–28; and Franzese 2009, at 14–18.

  54. 54.

    Sauter 2015, at 72 et seq.

  55. 55.

    Ibid., at 73 (emphasis in original).

  56. 56.

    Ibid., at 73.

  57. 57.

    Schmitt 2013, at 19; for Sauter’s argument about the relation between data and the ‘internet has a real-world geography’, see Sauter 2015, at 73. She discusses the ‘data as an object’ metaphor separately, but also suggests this metaphor and the one described in this section support each other. See ibid., at 72.

  58. 58.

    Sauter 2015, at 73, see also 74; see also Hollis 2015, at 138.

  59. 59.

    See also Lambach 2016, at 2; see also the references to Herrera 2005; Cohen 2007 and Benoliel 2005, above.

  60. 60.

    Sauter 2015, at 73; Agnew 1994, i.a. at 55–56; Franzese 2009, at 12; Benoliel 2005, at 155; 171; Byassee 1995, at 199.

  61. 61.

    Sauter 2015, at 73.

  62. 62.

    Ibid., at 72; similarly, Cohen 2007, at 211 and 217–218 (reflecting on the physical presence of cyberspace users). Thanks to Sofia Stolk for a discussion on this point.

  63. 63.

    B Mason (2015) Beautiful, Intriguing, and Illegal Ways to Map the Internet, Wired, https://www.wired.com/2015/06/mapping-the-internet/, accessed 24 October 2016.

  64. 64.

    See also Lambach 2016, at 4.

  65. 65.

    Benoliel 2005, at 146–148; see also footnote 16, above.

  66. 66.

    Ibid., at 146.

  67. 67.

    Ibid., at 155.

  68. 68.

    Ibid., at 147.

  69. 69.

    Manjikian 2015, at 65.

  70. 70.

    Schmitt 2013, at 19.

  71. 71.

    Ibid., at 19.

  72. 72.

    Note that the possibility of spoofing is one of the reasons Johnson and Post argue against the idea of an analogy between physical (territorial) space and the internet. See Johnson and Post 1995, at 1374.

  73. 73.

    Schmitt 2013, at 239.

  74. 74.

    Ibid., at 239.

  75. 75.

    Ibid., at 239.

  76. 76.

    For a reflection, see Cohen 2007, at 212–213; and Benoliel 2005, at 149–151.

  77. 77.

    Sauter 2015, at 73; see also Lambach 2016, at 2.

  78. 78.

    Lambach 2016, at 10 (single quotation marks omitted); see also Agnew 1994, at 68–71 on the ‘container notion of the state’; Steinberg and McDowell 2003, at 204.

  79. 79.

    MN Schmitt (2012) CyCon 2012 Tallinn Manual Part I, 4th Annual International Conference on Cyber Conflict (CyCon), 5–8 June 2012, Tallinn, https://www.youtube.com/watch?v=wY3uEo-Itso, accessed 26 April 2016, at 8.08.

  80. 80.

    See also Lambach 2016, at 4; Benoliel 2005, at 171, and generally, Agnew 1994.

  81. 81.

    Lambach 2016, at 2 (emphasis omitted).

  82. 82.

    Sauter 2015, at 73.

  83. 83.

    Lambach 2016, at 3. This doesn’t mean we can do without; see Cohen 2007, at 234–235 (‘[o]ne cannot simply refuse to talk about cyberspace as space, and to do so is to abandon powerful tools.’).

  84. 84.

    It should be noted that any link between a formal doctrine on cyberwar as adhered to by NATO , and the work of the Tallinn Manual experts has been vehemently denied time and again by the experts and their director themselves. See, for example, Schmitt 2013, at 11; and MN Schmitt (2012) CyCon 2012 Tallinn Manual Part I, 4th Annual International Conference on Cyber Conflict (CyCon), Tallinn, 5–8 June 2012, https://www.youtube.com/watch?v=wY3uEo-Itso, accessed 26 April 2016, at 1.48.

  85. 85.

    On ‘[(un)]consciously chosen’ metaphors, see Cohen 2007, at 229.

  86. 86.

    Lambach 2016, at 12.

  87. 87.

    MN Schmitt (2015) PILAC Lecture on Cyber Operations and IHL: Fault Lines and Vectors, 3 April 2015, https://www.youtube.com/watch?v=ZWwrVAMSOT4, accessed 11 May 2016, at 52.31.

  88. 88.

    Schmitt 2013, at 6, 7; MN Schmitt (2012) CyCon 2012 Tallinn Manual Part I, 4th Annual International Conference on Cyber Conflict (CyCon), Tallinn, 5–8 June 2012, https://www.youtube.com/watch?v=wY3uEo-Itso, accessed 26 April 2016, at 11.17; MN Schmitt (2015) PILAC Lecture on Cyber Operations and IHL: Fault Lines and Vectors, 3 April 2015, https://www.youtube.com/watch?v=ZWwrVAMSOT4, accessed 11 May 2016, at 52.59.

  89. 89.

    Sauter suggests this might happen, see Sauter 2015, at 70.

  90. 90.

    For a similar point, see Ryngaert 2014, at 1.

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  1. Vrije Universiteit Amsterdam, Amsterdam, The Netherlands

    Lianne J.M. Boer

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    Martin Kuijer

  2. Faculty of Law, VU University Amsterdam, Amsterdam, The Netherlands

    Wouter Werner

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Boer, L.J. (2017). ‘Spoofed Presence Does not Suffice’: On Territoriality in the Tallinn Manual. In: Kuijer, M., Werner, W. (eds) Netherlands Yearbook of International Law 2016. Netherlands Yearbook of International Law, vol 47. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-207-1_6

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